maine peoples v. holtrachem, 471 f.3d 277, 1st cir. (2006)

7/26/2019 Maine Peoples v. Holtrachem, 471 F.3d 277, 1st Cir. (2006)

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471 F.3d 277

MAINE PEOPLE'S ALLIANCE AND NATURAL

RESOURCES DEFENSE COUNCIL, Plaintiffs, Appellees,

v.

MALLINCKRODT, INC., Defendant, Appellant.

No. 05-2331.

United States Court of Appeals, First Circuit.

Heard October 5, 2006.

Decided December 22, 2006.

COPYRIGHT MATERIAL OMITTED Carter G. Phillips, with whom

Joseph R. Guerra, J. Andrew Schlickman, John M. Heyde, and Sidley

Austin LLP were on brief, for appellant.

Mitchell S. Bernard, with whom Nancy S. Marks, Eric J. Uhl, and Moon,

Moss & Shapiro, P.A. were on brief, for appellees.

Before SELYA and HOWARD, Circuit Judges, and SMITH,*District

Judge.

SELYA, Circuit Judge.

1 In the teeth of two decades of contrary precedent from four circuits, defendant-

appellant Mallinckrodt, Inc. asks us to restrict the role of private citizens in the

abatement of imminent and substantial threats to the environment and publichealth. In support of this entreaty, Mallinckrodt presents a gallimaufry of new,

hitherto unconsidered arguments. After careful consideration of this

asseverational array, we conclude that our sister circuits have adroitly distilled

the meaning of section 7002(a)(1)(B) of the Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. 6972(a)(1)(B) the so-called citizen suit

provision. Correctly interpreted, this provision allows citizen suits when there is

a reasonable prospect that a serious, near-term threat to human health or the

environment exists.1In such situations, the provision permits remediesconsistent with the scope of a district court's equitable discretion.

The district court read the statute in this manner and faithfully applied the law


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to the facts. Its supportable liability finding, coupled with a choice of remedy

that comes within the encincture of its discretion, leads us to reject

Mallinckrodt's appeal.

I. BACKGROUND

3 We rehearse here only those facts that are directly relevant to the issues on

appeal, referring readers who hunger for more information to the district court's

initial opinion. See Me. People's Alliance v. HoltraChem Mfg. Co.,211

F.Supp.2d 237 (D.Me.2002). This narrative credits the factual findings of the

district court to the extent that those findings are not clearly erroneous. See Fed.

Refinance Co. v. Klock,352 F.3d 16, 27 (1st Cir.2003).

4 From 1967 to 1982, Mallinckrodt, then called International Minerals andChemicals Corporation, owned and operated a chlor-alkali plant (the Plant)

situated on the banks of the Penobscot River in Orrington, Maine. Thereafter,

the Plant continued operations under other owners, namely, Hanlin Group, Inc.

and HoltraChem Manufacturing Co.,2until it closed in 2000. During the period

of its operation, the Plant deposited tons of mercury-laden waste into the

Penobscot River. See Me. People's Alliance,211 F.Supp.2d at 253. While there

have been a number of other significant contributors to mercury in the

Penobscot, "Mallinckrodt has been a dominant source."Id.at 255.

5 In 1986, the Plant's continuous release of mercury led the Environmental

Protection Agency (EPA) to file an administrative RCRA action against Hanlin

(the Plant's quondam owner). That action resulted in an agreement for

corrective measures. Deeming turnabout fair play, Hanlin sued Mallinckrodt for

contribution. In a 1991 settlement, Mallinckrodt agreed to pay a portion of the

compliance costs imposed by the agreement.

6 A subsequent enforcement action led to a 1993 consent decree that superseded

the earlier agreement. Although not a party to this consent decree,

Mallinckrodt, consistent with the Hanlin settlement, paid its share of the

compliance costs and participated in ongoing negotiations with government

regulators.3That included working with both EPA and Maine's Department of

Environmental Protection (MDEP).

7 The 1993 consent decree contemplated a tripartite process comprising siteinvestigation, evaluation of possible corrective measures, and remediation. In

line with the first phase of this process, Mallinckrodt compiled and submitted a

site investigation report. In March of 1997, EPA and MDEP, acting in concert,


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issued a draft notice of disapproval. Mallinckrodt countered with a

supplemental site investigation report but, in 2000, EPA and MDEP again

disapproved. Among other things, the regulators instructed Mallinckrodt to

study the effects of mercury downriver from the Plant.

8 Within a matter of months, Mallinckrodt commissioned a study aimed at

examining downriver mercury contamination. It conducted a second downriverstudy during the summer of 2001. Notwithstanding the submission of these

studies, however, the district court supportably found that Mallinckrodt made

only minimal efforts to pursue the designated line of inquiry and that the

decision to forgo more vigorous efforts was deliberate.Id.at 244 & n. 9.

9 In the midst of this sparring, two environmental groups the National

Resources Defense Council and the Maine People's Alliance joined forces to

commence a citizen suit under RCRA 7002(a)(1)(B). The plaintiffs allegedthat mercury contamination downriver from the Plant "may present an

imminent and substantial endangerment to health or the environment."

Acknowledging the possibility that remediation might eventually prove to be

either unnecessary or infeasible, their principal prayer for relief was that

Mallinckrodt be ordered to fund an "independent, comprehensive, scientific

study to determine the precise nature and extent of the endangerment."

10 Mallinckrodt tried on several occasions to derail the suit on the ground that

EPA, not the courts, had primary jurisdiction. The district court demurred,

holding that the suit would not present any conflict with agency action due to

EPA's apparent lack of interest in the lower Penobscot.

11 The case was reached for trial in March of 2002. By that time, EPA and MDEP

had made public, but had not adopted, preliminary media protection standards,

potentially applicable to the lower Penobscot. Had those standards gone into

effect, no remediation would have been required for the region with which this

litigation is concerned.

12 During a nine-day bench trial,4one of the plaintiffs' principal experts was Dr.

Robert Livingston. The district court found Livingston, an aquatic biologist, to

be "particularly credible and persuasive."Id.at 251. Drawing on three main

sources the data gathered under the EPA-ordered site studies, some limited

field work, and the scientific literature concerning mercury in aquatic systems Livingston opined that there might be a serious endangerment to both human

health and the environment resulting from mercury contamination in the lower

Penobscot. Although believing it "highly likely" that these harms would prove


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to be both real and severe, he cautioned that he had not yet "done the right

research to determine that." Due to the absence of sufficient research, no one

could know with certitude "if there is a problem" or "what the problem is."

When all was said and done, however, he thought it "highly likely" that

localized and targeted remediation would be both necessary and desirable.

13 The plaintiffs also adduced testimony from other experts, from individualswithin their respective memberships, and from EPA and MDEP representatives.

A number of defense experts testified as well. After both sides had rested and

submitted briefs, the district court issued a thoughtful rescript.

14 The court found that mercury in aquatic systems is susceptible to being

transformed by microscopic organisms into its organic form (known as

methylmercury).Id.at 244. Methylmercury is a highly toxic substance which,

even in low dosages, is inimical to human health; for example, it "attacks thenervous system, the kidneys, the immune system, and the reproductive system"

and is especially damaging to a developing fetus.Id.at 245. Methylmercury is

especially pernicious because it is the most bioavailable form of mercury and

therefore, is readily accumulated in humans and animals alike.Id.at 244.

15 Next, the court found that mercury concentration in sediments extracted from

the lower Penobscot runs five times higher than in the Kennebec River (which

Mallinckrodt's expert identified as an appropriate comparator).Id.at 248.

Despite this high concentration, the court wisely recognized that "the mere

presence of mercury contaminated sediments is alone not enough to constitute

an imminent and substantial endangerment," id.,so it proceeded to examine the

available data concerning mercury contamination in various species in the

lower Penobscot, including benthos, killfish (minnows), lobsters, blue mussels,

cormorants, osprey, and eagles. This examination led the court to conclude that

"mercury is methylating downriver" and that "methylmercury is bioavailable,

entering biota, and biomagnifying throughout the food web."Id.at 251.

16 The court expressed heightened concern about a region known as Frankfort

Flats, which displayed extraordinarily high mercury readings in both sediments

and biota.Id.at 252. Frankfort Flats receives drainage from a marsh system,

and marshes are considered to be hotbeds of methylation. See id.

17 When the district court turned to the legal standard for citizen suits underRCRA 7002(a)(1)(B), it characterized that standard as "lenient." 211

F.Supp.2d at 246. It cited with approval case law emphasizing that RCRA

allows such a suit when the putative polluter "may" have caused an imminent


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and substantial endangerment.Id.at 246-47 (collecting cases). On this basis,

the court concluded that the statute's "imminent and substantial endangerment"

standard would be satisfied by a "reasonable medical concern for public health

and a reasonable scientific concern for the environment."Id.at 252.

18 Applying this interpretation of the statute to the facts as found, the court

determined that Mallinckrodt's disposal activities may have created animminent and substantial danger and that, therefore, the plaintiffs had carried

their burden of proof anent liability.Id.at 251-52. Then, having found liability,

the court directed the parties to make a good-faith effort to agree on a study

plan.Id.at 256. The parties complied and, on August 10, 2005, the court

approved a plan which, if carried out, probably will require Mallinckrodt to

spend around $4,000,000 for laboratory analyses, independent of all other costs.

The purpose of the study is to learn whether, in actuality, mercury

contamination in the lower Penobscot adversely affects either human health orthe environment, and if so, to devise a feasible remedial approach.

19 Mallinckrodt now appeals, asserting that the plaintiffs lacked standing to sue in

the first place; that the lower court set the bar too low for RCRA citizen suits;

and that, in all events, the court abused its discretion in fashioning relief. We

address these assertions one by one.

II. STANDING

20 As a threshold matter, Mallinckrodt alleges that the plaintiffs lack standing to

sue because they have not suffered an injury in fact.5The existence vel non of

standing is a legal question and, therefore, engenders de novo review. See N.H.

Right to Life Political Action Comm. v. Gardner,99 F.3d 8, 12 (1st Cir.1996).

When, however, the trial court's standing determination rests on findings of

fact, we must honor those factual findings unless they are clearly erroneous. See

Rivera v. Wyeth-Ayerst Labs.,283 F.3d 315, 319 (5th Cir.2002).

21 We start our inquiry into standing with the undisputed fact that both of the

plaintiffs are associations. In order to ground a claim of associational standing

(that is, standing to bring suit on behalf of its membership), an association must

show three things: (i) that individual members would have standing to sue in

their own right; (ii) that the interests at stake are related to the organization's

core purposes; and (iii) that both the asserted claim and the requested relief canbe adjudicated without the participation of individual members as named

plaintiffs.Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,528

U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The plaintiffs in this


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case plainly have made the latter two showings. Hence, the inquiry reduces to

whether the organizations' individual members would have had standing to

proceed in their own right.

22 Because there is nothing in RCRA's text or history that suggests a congressional

intent to erect statutory standing barriers beyond those imposed by Article III of

the Constitution and because Mallinckrodt has not identified any prudentialstanding concerns, we focus on what is essential to establish Article III

standing. Those requirements are expressed in a familiar three-part algorithm: a

would-be plaintiff must demonstrate a concrete and particularized injury in fact,

a causal connection that permits tracing the claimed injury to the defendant's

actions, and a likelihood that prevailing in the action will afford some redress

for the injury.Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61, 112 S.Ct.

2130, 119 L.Ed.2d 351 (1992);Pagn v. Caldern,448 F.3d 16, 27 (1st

Cir.2006). These requisites must be proved "with the manner and degree ofevidence required at the successive stages of the litigation."Lujan,504 U.S. at

561, 112 S.Ct. 2130. When, as now, standing is reviewed after trial, the facts

establishing standing "must be supported adequately by the evidence adduced

at trial."Id.(internal quotation marks omitted). The ultimate quotient of proof is

a preponderance of the evidence. See Perry v. Vill. of Arlington Heights,186

F.3d 826, 829 (7th Cir.1999).

23 We first dispose of an argument that verges on the specious. Mallinckrodtprotests that the plaintiffs cannot have established a cognizable injury since the

district court thought it appropriate to order a remedy the study that

would determine whether mercury in the Penobscot is "having significant

adverse effects" on the environment or "posing an unacceptable risk to human

health." This protestation conflates the district court's finding of liability with

its choice of remedy. As we shortly shall explain, probabilistic harms are

legally cognizable, and the district court made a supportable finding that a

sufficient probability of harm exists to satisfy the Article III standing inquiry.See Me. People's Alliance,211 F.Supp.2d at 253. The fact that the court chose a

remedy that aspires to furnish a degree of determinacy before fashioning further

relief speaks only to the court's cautious use of discretion in selecting remedies;

it does not speak to the plaintiffs' standing as of the present time.

24 Having dispatched this attempted sleight of hand, we proceed to more serious

matters. Mallinckrodt concentrates its standing attack on the plaintiffs'

ostensible failure to prove the injury-in-fact component. At trial, the plaintiffscalled four witnesses from within their respective memberships, all of whom

reside on or near the banks of the Penobscot River. All four vouchsafed that

they have modified their behavior due to fear of mercury contamination.


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Although eager to do so, none of them will eat fish or shellfish from the river

nor recreate on or near it. One witness added that, but for the mercury

contamination, she would harvest mussels and sell them to supplement her

income. The district court credited this testimony.Id.

25 Plaintiffs in environmental suits may predicate claims of injury on aesthetic or

recreational harms. See Laidlaw,528 U.S. at 183, 120 S.Ct. 693; Sierra Club v.Morton,405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Save Our

Heritage, Inc. v. FAA,269 F.3d 49, 55 (1st Cir.2001). Still, neither a bald

assertion of such a harm nor a purely subjective fear that an environmental

hazard may have been created is enough to ground standing. Rather, an

individual's decision to deny herself aesthetic or recreational pleasures based on

concern about pollution will constitute a cognizable injury only when the

concern is premised upon a realistic threat. See Laidlaw,528 U.S. at 184, 120

S.Ct. 693;see also City of Los Angeles v. Lyons,461 U.S. 95, 107 n. 8, 103S.Ct. 1660, 75 L.Ed.2d 675 (1983) (explaining that "the realityof the threat . .

., not the plaintiff's subjective apprehensions," constitutes the cognizable

injury).

26 In this instance, Mallinckrodt exhorts us to find that the witnesses' stated fears

are unreasonable. It points out and the record confirms that waterways

throughout Maine suffer to some extent from mercury pollution and that,

therefore, it is responsible at most for a probabilistic increase in a risk that thewitnesses would in any event have had to run.

27 There is some confusion as to the thrust of Mallinckrodt's argument. The

plaintiffs read its brief, not implausibly, as arguing that these facts necessarily

limit cognizable injuries to identifiable medical concerns. SeeAppellees' Br. at

54. Mallinckrodt's reply brief, however, acknowledges that the plaintiffs'

principal claim of injury is for diminished enjoyment of their environment and

joins issue on the sufficiency of the proof in that regard. SeeAppellant's ReplyBr. at 25. At bottom, this argument suggests that the plaintiffs must show that

Mallinckrodt's activities created a significantly increased risk of harm to health

or the environment so as to make it objectively reasonable for the plaintiffs'

members to deny themselves aesthetic and recreational use of the river.

28 To establish an injury in fact based on a probabilistic harm, a plaintiff must

show that there is a substantial probability that harm will occur. See Warth v.

Seldin,422 U.S. 490, 504, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975);see also

Adams v. Watson,10 F.3d 915, 923 (1st Cir.1993). Mallinckrodt suggests that

the instant plaintiffs have not demonstrated a sufficiently probable increase in

harm because of (i) Dr. Livingston's admitted uncertainty about whether any


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problem exists and (ii) the notion that politically accountable branches of

government, not courts, are the appropriate entities to make judgments as to

what risks are acceptable in modern society. Neither suggestion is convincing.

29 Mallinckrodt's first suggestion relies ultimately on a single snippet of Dr.

Livingston's testimony, wrested from its contextual moorings. But a trial court,

confronted with a complex and highly ramified factual situation, is fully entitledto consider the import of a witness's testimony as a whole. This case is a good

example: Dr. Livingston testified, in effect, that the presence of a great deal of

smoke justified looking for a fire. Mallinckrodt excerpts only his isolated

statement that he had not actually seen a fire yet. This plucking of the record

overlooks the obvious fact that the district court, drawing on the whole of Dr.

Livingston's testimony as well as a plethora of other evidence, supportably

concluded that "mercury is methylating downriver, and that such

methylmercury is bioavailable, entering biota, and biomagnifying throughoutthe food web" in sufficient quantity that it may well present an imminent and

substantial danger to the environment.Me. People's Alliance,211 F.Supp.2d at

251 (citation omitted). Relatedly, the court found that "the effects resulting

from methylmercury exposure . . . clearly endanger reproduction, development,

and overall health of the public and the environment," id.at 252, and that

"Mallinckrodt has been a dominant source of mercury in the Penobscot River,"

id.at 255.

30 In other words to return to our metaphor the lower court discerned telltale

signs that a fire might already be smoldering. In light of its warrantable

findings, the court had ample reason to conclude that Mallinckrodt has created a

substantial probability of increased harm to the environment. That increased

risk, in turn, rendered reasonable the actions of the plaintiffs' members in

abstaining from their desired enjoyment of the Penobscot.

31 Mallinckrodt's second suggestion is nothing less than a no-holds-barred assaulton the federal courts' institutional competency. It emphasizes that the plaintiffs

allege no violation of any federally prescribed discharge limits, and then treats

this omission as dispositive. SeeAppellant's Br. at 27 (asserting that "in the

absence of any finding by [EPA]," courts are not equipped to determine

whether "the medical and scientific uncertainties created by mercury in the

Penobscot create an unacceptableincreased risk of harm" (emphasis in

original)).

32 This postulate proceeds from a two-part premise. First, in terms of

environmental regulation where important policy tradeoffs must be made

between protection and progress the only injuries that satisfy the criteria for


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Article III standing are those injuries that are "unacceptable"; and second, the

political branches alone, not courts, have the expertise and accountability to

determine which injuries society must be prepared to tolerate. In Mallinckrodt's

view, this need to restrict cognizable injuries to "unacceptable" injuries is

especially acute where, as in this case, the asserted harms are probabilistic.

33 Mallinckrodt provides scant authority for an argument that has suchbreathtaking ramifications for the scope of judicial power. Its notion of

acceptability is apparently derived from a single, quarter-century-old opinion,

in which a respected court cautioned that judges cannot "formulate policy with

respect to what [environmental] risks are acceptable."Envtl. Def. Fund v. EPA,

598 F.2d 62, 83-84 (D.C.Cir. 1978). That court, however, was reviewing a

challenge to an EPA regulation based on an alleged lack of substantial

evidence. There is no discussion either of standing or of Article III's limits on

judicial power. The opinion, therefore, affords no solid foundation for theproposition that Mallinckrodt asserts.6

34 In a related vein, Mallinckrodt argues that a grant of standing in this case would

be tantamount to judicial usurpation of regulatory authority because it would

permit "private parties to attack EPA risk assessments collaterally, using the

very risks EPA deemed acceptable to establish standing and liability, with no

deference afforded to EPA's policy judgment." Appellant's Reply Br. at 27-28.

But the ingredients that comprise what Mallinckrodt sees as a recipe fordisaster the relatively broad scope of citizens' rights to sue polluters, the

existence of liability in such suits, and the less-than-total deference afforded to

agency inaction all turn on legislative choices. Congress has elected to

create a cause of action for affected citizens notwithstanding the absence of any

EPA-sponsored standard. While we share Mallinckrodt's belief that it would be

a usurpation of legislative prerogative for a court to assume policymaking

control over environmental regulation, it would be no less offensive a

usurpation for a court to refuse to undertake a task validly entrusted to it byCongress. In the last analysis, Article III requires a cognizable injury; it does

not speak to the wisdom of the legislature's actions in providing redress for that

injury.

35 We add an eschatocol of sorts. In rejecting Mallinckrodt's arguments as to

standing, we remain confident that Congress has not asked federal courts to

perform tasks that are beyond their institutional competency. In our view,

courts are capable of assessing probabilistic injuries. Moreover, nuisanceprinciples contribute heavily to the doctrinal template that underbraces statutes

like RCRA,see, e.g., Cox v. City of Dallas,256 F.3d 281, 289 (5th Cir.2001),

and the tasks involved in adjudicating environmental cases are well within the


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federal courts' accustomed domain. While courts can (and do) benefit from

available agency expertise, it is an insupportable leap of logic to maintain that,

in the absence of such input, claims of injury are not cognizable at all.

36 That ends this aspect of the matter. For the reasons discussed above, we hold

that the plaintiffs have standing to sue under RCRA 7002(a)(1)(B). We turn,

then, to the meat of the appeal.

III. THE MERITS

37 This case revolves around the meaning and purport of RCRA 7002(a)(1)(B),

a statute that, as described above, allows citizens to sue persons or firms whose

handling of solid or hazardous waste "may present an imminent and substantial

endangerment to health or the environment."Id.The district court read thislanguage as meaning that such suits could be brought to alleviate reasonable

medical or scientific concerns.Me. People's Alliance,211 F.Supp.2d at 252.

Mallinckrodt urges a more circumscribed interpretation. To the extent that this

interpretive controversy presents a question of statutory construction, we afford

de novo review.7See Lattabv. Ashcroft,384 F.3d 8, 21 (1st Cir. 2004).

38 An historical perspective illustrates the strength of the current against which

Mallinckrodt is swimming. Congress enacted RCRA in 1976, Pub.L. No. 94-580, 90 Stat. 2795, with the avowed intention of closing "the last remaining

loophole in environmental law, that of unregulated land disposal of discarded

materials and hazardous waste." H.R.Rep. No. 94-1491, pt. 1, at 4, reprinted in

1976 U.S.C.C.A.N. 6238, 6241. In its original iteration, RCRA 7002 (now

codified in pertinent part at 42 U.S.C. 6972(a)(1)(A)) offered citizens the

opportunity to bring suit against a polluter only when the polluter was alleged

to be in violation of a permit, standard, regulation, condition, requirement, or

order issued by EPA. At the same time, RCRA created a cause of action,

available exclusively to the EPA Administrator, for cases in which the

"disposal of any solid waste or hazardous waste is presenting an imminent and

substantial endangerment to health or the environment." RCRA 7003

(codified as amended at 42 U.S.C. 6973(a)). In suits brought under this latter

provision, federal district courts were granted broad remedial authority to

"restrain" polluters and take "such other action as may be necessary."Id.

39 Pertinently we think, Congress later loosenedthe standard for liability undersection 7003. This transpired four years later when Congress passed the Solid

Waste Disposal Act Amendments of 1980. That legislation amended section

7003 by substituting the words "may present" for the words "is presenting."


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Pub.L. No. 96-482, 25, 94 Stat. 2334, 2348.

40 In United States v. Price,688 F.2d 204 (3d Cir.1982), a seminal RCRA 7003

case, a district court found that a landfill leaking toxic substances posed an

imminent and substantial danger to Atlantic City's water supply but refused to

order a study of this hazard at the preliminary injunction stage.Id.at 209. The

Third Circuit reversed, ruling that the use of the word "may" in RCRA 7003was intended to make the provision "expansive."Id.at 213. In its view,

"Congress, by enacting section 7003, intended to confer upon courts the

authority to grant affirmative equitable relief to the extent necessary to

eliminate any risks posed by toxic waste."Id.at 214.

41 Soon thereafter, Congress passed the Hazardous and Solid Waste Amendments

of 1984 (1984 amendments), Pub.L. No. 98-616, 98 Stat. 3221. The 1984

amendments introduced a new provision, RCRA 7002(a)(1)(B), into thestatutory scheme. Using language that tracked the post-1980 text of RCRA

7003, this new provision extended to citizens the right to sue a polluter who

may be causing an imminent and substantial endangerment to public health or

the environment.Id. 401, 98 Stat. at 3268-69. The Senate Report that

accompanied the 1984 amendments approvingly cited and quotedPriceon

several occasions, specifically endorsing that court's conclusion that section

7003 is intended to give courts the tools to "eliminate any risks posed by toxic

waste." S.Rep. No. 98-284, at 59 (1983).

42 Around this same time, the Fourth Circuit decided another RCRA 7003 case,

in which it flatly rejected the proposition that "section 7003 was designed to

control pollution only in emergency situations." United States v. Waste Indus.,

Inc.,734 F.2d 159, 165 (4th Cir.1984). The court emphasized the statute's use

of the word "may" and citedPriceapprovingly.

43 Priceand Waste Industrieshave become guideposts for courts endeavoring to

interpret the counterpart language contained in RCRA 7002(a)(1)(B). To

date, at least four of our sister circuits have construed that provision

expansively. See Interfaith Cmty. Org. v. Honeywell Int'l., Inc.,399 F.3d 248,

258-59 (3d Cir.2005);Parker v. Scrap Metal Processors, Inc.,386 F.3d 993,

1015 (11th Cir.2004); Cox,256 F.3d at 299;Dague v. City of Burlington,935

F.2d 1343, 1355 (2d Cir.1991), rev'd in part on other grounds,505 U.S. 557,

112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). In taking this position, all four courts

have emphasized the preeminence of the word "may" in defining the degree of

risk needed to support RCRA 7002(a)(1)(B)'s liability standard.

44 This ex ansiveness in construin the re uisite de ree of risk has lar el been


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matched in the courts' assessment of the gravity and immediacy of the

threatened harm. With one possible exception, the courts have agreed that the

word "substantial" implies serious harm.8See, e.g., Parker,386 F.3d at 1015.

There has, however, been some reluctance to quantify the needed level of harm

more precisely. See, e.g., Honeywell,399 F.3d at 259. Imminence generally has

been read to require only that the harm is of a kind that poses a near-term

threat; there is no corollary requirement that the harm necessarily will occur orthat the actual damage will manifest itself immediately. See Cox,256 F.3d at

299-300.

45 Mallinckrodt argues that this long line of cases has consistently misreadPrice

(which, Mallinckrodt says, only concerned remedial power, not scope of

liability) and, in the bargain, has disregarded the strictures imposed by the

adjectives "imminent" and "substantial." We have not had occasion to construe

the reach of the citizen suit provision contained in RCRA 7002(a)(1)(B), andwe are obligated to offer our independent judgment on an issue of first

impression here (which, as we shortly shall explain, coincides with the result

reached by the other courts of appeals that have confronted the question).

Accordingly, we proceed to test the mettle of the conventional construction of

RCRA 7002(a)(1)(B) against Mallinckrodt's challenge.

46 The district court, following the interpretive trail blazed by the four above-

mentioned courts of appeals, employed the conventional construction. It began

by noting that the word "endangerment" does not imply actual harm but, rather,

implies only potential harm.Me. People's Alliance,211 F.Supp.2d at 246. The

court then noted that the statutory standard is further relaxed because of

Congress's use of the word "may."Id.As a result, the court found RCRA

7002(a)(1)(B) to be a "sweeping provision indicat[ing] Congress's intent `to

confer upon the courts the authority to grant affirmative equitable relief to the

extent necessary to eliminate any riskposed by toxic waste.'"Id.at 246-47

(quotingDague,935 F.2d at 1355 (quotingPrice,688 F.2d at 214) (emphasissupplied inDague)).

47 The court read the statute's adjectival elements in line with the breadth of the

authority granted. It found that the word "imminent" connotes only that the

"factors giving rise to [the harm] are present, even though the harm may not be

realized for some time."Id.at 247. Relatedly, the court found that the word

"substantial" connotes no more than "reasonable cause for concern that

someone or something may be exposed" to harm.Id.(quotingRaymond K.

Hoxsie Real Estate Trust v. Exxon Educ. Found.,81 F.Supp.2d 359, 366

(D.R.I.2000) (internal quotation marks omitted)). A "reasonable medical

concern" would, the court said, be sufficient to ground liability under the


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statute.Id.at 252. The court's only explicit limitation on the availability of

relief was when "the risk of harm is remote in time, completely speculative in

nature, or de minimis in degree."Id.at 247 (quoting United States v. Reilly Tar

& Chem. Corp.,546 F.Supp. 1100, 1109 (D.Minn.1982)). Mallinckrodt balks at

this interpretation of RCRA 7002(a)(1)(B) for a host of reasons. It argues that

this construction ignores the plain meaning of the phrase "imminent and

substantial endangerment," does violence to the internal coherence of RCRA byoverlooking the hierarchy of standards contained within that statute, tampers

with Congress's wise delegation of policymaking to an expert agency, and

frustrates congressional intent. We address each of these criticisms in turn.

48 Mallinckrodt's textual argument rests on the premise that the courts that

heretofore have explicated section 7002(a)(1)(B)'s liability standard have been

blinded by the glare of the word "may" and have lost sight of the plain meaning

of the words "imminent and substantial." In Mallinckrodt's view, the phrase"may present an imminent and substantial endangerment," when read as a

whole, requires a risk of grave harm that is more likely than not to occur.

Mallinckrodt deduces this construction from a Rosetta Stone that is part case

law and part lexicography.

49 The word "endangerment," Mallinckrodt says somewhat tautologically, is "the

state of being placed in danger." Webster's Third New International Dictionary

748 (1993). In that connection, it defines danger as "exposed to harm" or"peril."Id.at 573 (excess capitalization omitted). To elucidate the meaning of

"may," Mallinckrodt points to a sixty-year old Supreme Court decision that

defines "may," as used in section 2(a) of the Clayton Act, as "probably." Corn

Prods. Refining Co. v. FTC,324 U.S. 726, 738, 65 S.Ct. 961, 89 L.Ed. 1320

(1945). Finally, to give content to the phrase "imminent and substantial,"

Mallinckrodt invokes case law suggesting that, in other environmental contexts,

the unadorned word "endanger" implies a lower standard than that denoted by

the phrase "imminent and substantial endangerment." See Ethyl Corp. v. EPA,541 F.2d 1, 20 n. 36 (D.C.Cir.1976) (en banc);Reserve Mining Co. v. EPA,514

F.2d 492, 528 (8th Cir.1975) (en banc).

50 Mallinckrodt's textual argument makes sense but only to a point. While the

decisions inEthyl Corp.andReserve Miningare some evidence that, as of

1976,the phrase "imminent and substantial endangerment" was thought to

denote a heightened standard,9the relevant question is how that term was

understood in 1984(when section 7002(a)(1)(B) was enacted). The SenateReport on the 1984 amendments defines the word "endangerment" separately

from the phrase "imminent and substantial." SeeS.Rep. No. 98-284,supra,at

59. Mallinckrodt's criticism fails to account either for that circumstance or for


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Congress's insertion, in 1980, of the word "may" into section 7003 and its

subsequent use in section 7002. That word does not appear at all in the statute

considered inReserve Mining,514 F.2d at 528 & n. 70 (citing 33 U.S.C.

1364). InEthyl Corp.,one of the referenced statutes does use the word "may,"

but that court did not parse the entire sentence and looked only to the words

"imminent and substantial." See Ethyl Corp.,541 F.2d at 20 n. 36 (citing 42

U.S.C. 300i). We also note that statutes referenced inEthyl Corp.andReserve Miningbore the subtitle "Emergency Powers"; in contrast, neither

section 7002 nor section 7003 carry such a label.

51 The sockdolager, we think, is that "words are like chameleons; they frequently

have different shades of meaning depending upon the circumstances." United

States v. Romain,393 F.3d 63, 74 (1st Cir.2004). The terrain of the Clayton Act

and provisions specifically classified as conferring emergency powers are

sufficiently distinct in subject matter from RCRA's terrain. Thus, we areunprepared to say that the nuances attached to the phrase "may present an

imminent and substantial endangerment" by judicial decisions in those other

contexts should be transplanted root and branch into the differently textured

soil of RCRA 7002(a)(1)(B)-a statute enacted by a different Congress at a

different time for a different purpose. We conclude, therefore, that

Mallinckrodt's textual argument does not carry the day: the interpretive

question before us cannot be resolved favorably to Mallinckrodt on the basis of

plain meaning alone.

52 Mallinckrodt next argues that the conventional interpretation of section 7002(a)

(1)(B) drains the phrase "imminent and substantial" of any meaning because

RCRA already defines "hazardous waste" as material that will cause an increase

in mortality or serious illness or "pose a substantial present or potential hazard

to human health or the environment." 42 U.S.C. 6903(5). Thus, any release of

hazardous waste would satisfy the conventional construction of RCRA

7002(a)(1)(B), and the requirement that such a release create an "imminent andsubstantial endangerment" would be superfluous.

53 This argument is easily dispatched. In terms, section 7002(a)(1)(B) applies to

bothsolid waste and hazardous waste. RCRA's definition of "solid waste" does

not share the same characteristics as its definition of "hazardous waste," so to

that extent the phrase "imminent and substantial" retains an independent

meaning.

54 Relatedly, Mallinckrodt asserts that the conventional interpretation of

"imminent and substantial endangerment" overlooks RCRA's commitment to a

hierarchy of risks in which "imminent and substantial endangerment" ranks at


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or near the top. This argument builds on the idea that Congress employed

relatively lenient risk standards elsewhere in RCRA. See, e.g.,RCRA

4004(a), codified at 42 U.S.C. 6944(a) (providing that sanitary landfills must

have "no reasonable probability of adverse effects on health or the

environment"). Correspondingly, the word "endangerment" is used in other

contexts in connection with "imminent danger of death or serious bodily

injury." See, e.g.,RCRA 3008(e), codified at 42 U.S.C. 6928(e) (definingthe crime of "knowing endangerment"). Thus, the decision to require an

"imminent and substantial endangerment" must signify a special, harder-to-

achieve benchmark.

55 This argument has some superficial appeal. After all, it is a cardinal rule that

courts should strive to interpret statutes as a whole and to give effect to every

word and phrase.King v. St. Vincent Hosp.,502 U.S. 215, 221, 112 S.Ct. 570,

116 L.Ed.2d 578 (1991); United States v. Ven-Fuel, Inc.,758 F.2d 741, 751-52(1st Cir. 1985). But the conventional interpretation of section 7002(a)(1)(B)

gives full effect to the "imminent and substantial endangerment" language; it

merely eschews the mechanical cross-referencing, not mandated by Congress,

that Mallinckrodt advocates. That, in itself, should not raise eyebrows: where

the various parts of a complicated and multifaceted statutory scheme discuss

significantly different topics and function within different paradigms,

mechanical cross-referencing, not mandated by Congress, can lead to confusion

rather than clarity.

56 This is such a case. There is no meaningful parallelism between section 7002(a)

(1)(B) and the provisions that Mallinckrodt seeks to use as comparators. For

example, RCRA 3008(e) is a criminalprovision. Given the divergent

concerns that drive criminal statutes as opposed to civil remedial statutes, it

should not be surprising that the same word may vary in meaning as the context

shifts. Indeed, if "endangerment" as defined in section 3008(e) were to mean

precisely what it means in section 7002(a)(1)(B), the word "imminent" wouldbe rendered utterly redundant the statute would, in effect, require an

imminent imminence thus transgressing the very canon of construction that

Mallinckrodt labors to invoke.

57 Mallinckrodt offers a more sophisticated version of the argument that RCRA

creates a hierarchy of risks when it posits that the statute's most expansive

remedies are reserved for the greatest risks. In this regard, it points out that

under RCRA 3019(b), EPA can commission a health assessment whenever itbelieves that a landfill "poses a substantial potential risk to human health," 42

U.S.C. 6939a(b); under RCRA 3013, EPA can order the owner or operator

of a facility to conduct monitoring, testing, and analysis as long as the facility


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"may present a substantial hazard to human health or the environment," id.

6934(a); and under RCRA 7003, which has a risk standard identical to RCRA

7002(a)(1)(B), EPA can act to protect the public health,see id. 6973(a).

From this statutory melange, Mallinckrodt concludes that only the immediate

threat of grave harm is sufficient to trigger such far-reaching remedies.

58 The notion that a hierarchy of risks and remedies exists within RCRA is noteasily disproved. What is fairly clear, however, is that any such hierarchy is

well-disguised; if one exists, it seems more a product of fortuity than a product

of a purposeful legislative initiative. We explain briefly.

59 Section 3019(b) was first enacted in 1984, Pub.L. No. 98-616, 247, 98 Stat.

3221, 3265; section 3013 in 1980, Pub.L. No. 96-482, 17(a), 94 Stat. 2334,

2344; and section 7003 (previously cited) in 1976 (though that provision was

amended both in 1980 and 1984). Given that the changes were made todifferent subtitles of the statute at different times, such incrementalism weakens

(perhaps to the vanishing point) any inference that Congress specifically

intended a strict hierarchy of harms. If Congress actually wants a delineated

hierarchy of risks and remedies, it will have to say so more distinctly. Cf. King,

502 U.S. at 222, 112 S.Ct. 570 (construing that "differences do not necessarily

make hierarchies").

60 This brings us to Mallinckrodt's separation-of-powers argument. It asseverates

that RCRA's allocation of policymaking authority to EPA is such that the

citizen suit provision must be viewed as an "interstitial, emergency-type

remedy." Appellant's Br. at 45. Mallinckrodt asserts that this policymaking

authority necessarily includes responsibility for setting pollution standards and

that, in setting such standards, EPA, consistent with the tradeoffs inherent in

setting virtually any standard, does not aspire to eliminate all risks.

61 This assertion is founded on an indisputable verity: the principal responsibility

for implementing and enforcing RCRA resides with EPA, not with citizens

acting as private attorneys general. See Meghrig v. KFC Western, Inc.,516 U.S.

479, 483-84, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). We disagree, however,

with Mallinckrodt's contention that the conventional interpretation of section

7002(a)(1)(B) the interpretation espoused by our sister circuits and by the

court below is inconsistent with this scheme because it allows courts to

second-guess EPA's judgments too freely and affords relief based upon harms

that EPA has found acceptable.

62 Mallinckrodt attempts to bolster this argument by citing a plethora of cases for


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the proposition that environmental standards should be set by EPA, not the

courts. See, e.g., Amoco Oil Co. v. EPA,501 F.2d 722, 735 (D.C.Cir.1974).

This proposition is unremarkable, and we take no issue with it. We agree,

moreover, that courts must show appropriate respect for EPA's judgments. See

Envtl. Def. Fund,598 F.2d at 83-84. But allowing citizen suits to proceed is not

the functional equivalent of allowing courts to hijack EPA's regulatory

authority and weave safety standards out of whole cloth.

63 The case at hand illustrates this point. Although EPA (acting in concert with

MDEP) was leaning toward the adoption of media protection standards that

would not have required downriver remediation, no standards had been adopted

at the time the district court acted (nor, for that matter, does the record suggest

that any have been adopted up to the present time). Furthermore, EPA has

never taken the position or even so much as hinted that correction of the

Plant's effects on downriver pollution is bad policy. Thus, this is not a situationin which a court has presumed to grant relief that flies in the face of an express

EPA authorization of certain conduct.

64 We add, moreover, that the district court has been sensitive to separation-of-

powers concerns. On three different occasions, it considered and thoughtfully

rejected primary jurisdiction challenges.10And the court sensibly left open the

possibility that "primary jurisdiction concerns could arise in the future."Me.

People's Alliance,211 F.Supp.2d at 255. That presumably would cover thecontingency of changed circumstances that would eventuate should EPA, some

day, actually engage in an enforcement action pertinent to the condition of the

lower Penobscot.

65 The fact that courts retain some latitude in this area is not in any sense

incompatible with the statutory scheme. There are four different ways that EPA

can preempt a citizen suit and all four require that EPA itself take diligent

steps to remedy looming environmental harm. SeeRCRA 7002(b)(2)(B)(codified at 42 U.S.C. 6972(b)(2)(B)). That same provision narrowly

circumscribes EPA's preemptive power; it states that, when preemption is

premised on an EPA order, citizen suits are "prohibited only as to the scope and

duration of the administrative order." The short of it is that Congress has told

the federal courts that they are not required to steer clear of an area simply

because that area might be a focus of future EPA activity.11

66 Mallinckrodt tries to embellish its separation-of-powers argument in another

way as well; it maintains that section 7002(a) embodies a strong preference for

permit-violation suits as opposed to imminent and substantial endangerment

suits. This attempted embellishment does not withstand scrutiny.


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67 When not premised on the title related to hazardous waste, a permit-violation

suit may be brought after a 60-day waiting period while an imminent and

substantial endangerment suit requires observance of a 90-day waiting period.

CompareRCRA 7002(b)(1) (codified at 42 U.S.C. 6972(b)(1)), with

RCRA 7002(b)(2) (codified at 6972(b)(2)). This is the only substantive

difference between permit-violation suits and suits alleging imminent and

substantial endangerment. Given the relatively minor nature of that lonedisparity, we conclude, without serious question, that the structure of the

statutory scheme does not offer any persuasive evidence that Congress sought

to disfavor suits alleging imminent and substantial endangerment.

68 Mallinckrodt's emphasis on statutory structure includes an assertion that giving

section 7002(a)(1)(B) a broad reading will render nugatory the right to bring

permit-violation actions and the like under RCRA 7002(a)(1)(A). See

Appellant's Reply Br. at 15-16 (querying whether, if "there is a big hole in afence for the big cat, need there be a small one for the small one?") (citation

and internal quotation marks omitted). The flaw in this argument, as it pertains

to this case, is that the two holes were drilled at different times. Congress

placed the "imminent and substantial endangerment" gloss on RCRA's citizen

suit provision eight years aftermaking provision for permit-violation suits.

Thus, the more appropriate question is: "If Congress deliberately cut a second

hole in the fence, is there any reason not to accept the obvious premise that

Congress wanted to increase the ease with which cats of all sizes could comethrough the fence?"

69 Insofar as Mallinckrodt theorizes that courts lack the competence to function

under the conventional interpretation of RCRA 7002(a)(1)(B), we reject its

thesis. To be sure, Mallinckrodt cites case after case for the proposition that

forging policy is a task that non-expert, non-accountable judges should not

undertake. See, e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 866, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); United Statesv.Gilman,347 U.S. 507, 511-13, 74 S.Ct. 695, 98 L.Ed. 898 (1954). Some of

these cases suggest that judicial policymaking in the environmental sphere is

especially inappropriate because judges lack special competence to interpret

complex scientific, technical, and medical data. See, e.g., Safe Food & Fertil. v.

EPA,365 F.3d 46, 49 (D.C.Cir.2004).

70 This view sells the federal judiciary short: federal courts have proven, over

time, that they are equipped to adjudicate individual cases, regardless of thecomplexity of the issues involved. Federal courts are often called upon to make

evaluative judgments in highly technical areas (patent litigation is an excellent

example).12Performing that quintessentially judicial function in the


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environmental sphere is not tantamount to rewriting environmental policy. To

the contrary, what the lower court did here listening to the testimony of

expert witnesses, assessing their credibility, and determining whether or not a

litigant has carried the devoir of persuasion is very much within the core

competency of a federal district court.

71 As a last-ditch measure, Mallinckrodt strives to convince us that Congress'srevealed intent, as reflected in the legislative history, counsels in favor of a

narrow reading of section 7002(a)(1)(B). We are not persuaded.

72 The argument shapes up along the following lines. Citing S.Rep. No. 98-284,

supra,at 56, Mallinckrodt reads this archival information as confirming that

section 7002(a)(1)(B) was intended to operate "exactly the same" as section

7003. Building on that foundation, Mallinckrodt notes that section 7003, when

enacted in 1976, was envisioned as a means of providing "emergencyauthority." S.Rep. No. 94-988, at 16 (1976). This gloss, though artful, mixes

plums and pomegranates.

73 What is relevant to a congressional statement, in 1984, that section 7002(a)(1)

(B) is intended to operate in the same way as section 7003, is not how Congress

viewed section 7003 at the time of its original passage but, rather, how

Congress understood section 7003 in 1984.This is especially significant

because section 7003 was not worded the same in 1984 as it was in 1976. We

think it is clear that the 1980 amendment to the provision, substituting "may

present" for "is presenting," fundamentally altered how this provision was

understood.

74 The proof of the pudding is in the legislative archives. We refer particularly to

the way in which the provision was discussed during testimony taken in

anticipation of the 1984 amendments.

75 At that time, the House of Representatives was told authoritatively that section

7003 contained "very broad and general statutory language" and that the

government, "over the last several years," had been advocating "as broad an

interpretation [of it] as possible." Solid Waste Disposal Act Amendments of

1983: Hearing on S. 757 Before the Subcomm. on Envtl. Pollution of the S.

Comm. on Env't and Public Works,98th Cong. 17, 29 (1983) (statement of

Carol Dinkins, Asst. Atty. Gen., Land and Nat. Res. Div., Dep't of Justice). Italso learned that the Department of Justice viewed section 7003 as "loosely

worded," so that it conveyed "extraordinary, broad law enforcement powers."

Id.at 110, 120.


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76 The Senate's discussion of section 7003 in the course of considering the 1984

amendments likewise suggests an expansive view of the provision. The Senate

Report enthusiastically quotesPricefor the proposition that section 7003 is

"intended to confer upon the courts the authority to grant affirmative equitable

relief to the extent necessary to eliminate any risks posed by toxic wastes."13

S.Rep. No. 98-284,supra,at 59 (quotingPrice,688 F.2d at 214). It went on to

observe that the "primary intent of the provision is to protect human health andthe environment."Id.Thus, there is good reason to believe that Congress,

intending to create a provision modeled along the lines of section 7003,

understood that section as offering much more than emergency authority.

77 The legislative history is also at odds with Mallinckrodt's argument that the

conventional interpretation of section 7002(a)(1)(B) usurps EPA's

policymaking role. In parsing this legislative history, it is important to

recognize that Congress, in 1984, was acting against a background finding thatthere were "serious gaps" in RCRA, that EPA's enforcement actions were

characterized by "inadequate effort," and that EPA "ha[d] not been diligent in

vigorously pursuing a tough enforcement program." H.R.Rep. No. 98-198, pt.

1, at 20 (1983), reprinted in1984 U.S.C.C.A.N. 5576, 5578-79. Congress had

heard, and apparently credited, testimony from a former Assistant Attorney

General about "an astonishing two years of mismanagement at EPA in which

the enforcement of the hazardous waste disposal laws suffered greatly."Id.,pt.

3, at 6, reprinted in1984 U.S.C.C.A.N. 5636, 5641. Given this miseen-scne, itseems counterintuitive to suggest that Congress intended to erect an

enforcement structure built on exaggerated deference to EPA.

78 To be sure, the legislative history reflects the anticipation that "courts will

accord some deference to [EPA's] technical findings concerning the nature and

extent of endangerment." S.Rep. No. 98-284,supra,at 56. But we do not think

that "some deference" means either total obeisance or blind allegiance.

Congress desired a "tough enforcement program" and found that EPA had notbeen "diligent in vigorously pursuing" one. Citizen suits were meant to fill the

resultant void.14

79 We are unimpressed by Mallinckrodt's citation to language in the House Report

to the effect that section 7002(a)(1)(B) was designed to create a "limited right"

for citizens to sue. H.R.Rep. No. 98-198,supra,pt. 1, at 53, 1984 U.S.C.C.A.N.

at 5612. The very next sentence in that report explains the nature of the

limitation, namely, that this "right can only be exercised if the Administrator(following notice of the intended litigation) fails to file an action under 7003."

Id.The conventional interpretation of the statute does not in any way offend

this directive.


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80 Finally, Mallinckrodt spotlights a comment from the floor debate on section

7002, in which the bill's sponsor characterized the provision as giving citizens

the power "to abate the most serious kinds of hazardous waste situations: Those

that may present an imminent and substantial endangerment." 130 Cong.

Rec.2081, 2815 (1984) (statement of Sen. Mitchell). This one remark cannot

outweigh the substantial countervailing evidence that the citizen suit provision

was intended to empower private citizens by granting them relatively broadauthority to litigate when EPA had not acted in the face of a reasonable

prospect of serious, near-term harm. See Weinberger v. Rossi,456 U.S. 25, 35,

102 S.Ct. 1510, 71 L.Ed.2d 715 (1982).

81 Legislative history is often a mixed bag. Parties frequently are able to mine

nuggets from it selectively, picking and choosing isolated statements that serve

particular (sometimes conflicting) ends. Here, the legislative history is less than

pellucid. On the whole, however, it tends to support an expansive reading ofthe "imminent and substantial endangerment" standard for liability under

RCRA 7002(a)(1)(B).

82 To sum up, the combination of the word "may" with the word "endanger," both

of which are probabilistic, leads us to conclude that a reasonable prospect of

future harm is adequate to engage the gears of RCRA 7002(a)(1)(B) so long

as the threat is near-term and involves potentially serious harm. The language,

structure, purpose, and legislative history of the provision will not comfortablyaccommodate the more restricted reading that Mallinckrodt espouses. While

there may be good and wise reasons to adopt a regime in which EPA

determinations of environmental liability are exclusive, it is Congress's place,

not ours, to construct such a regime. To this date, Congress has not done so.

83 Given our conclusion that the conventional interpretation of RCRA 7002(a)

(1)(B) is correct, the remainder of the liability inquiry falls neatly into place.

None of Mallinckrodt's arguments persuade us that the district court eithermisconstrued this standard or misapplied it to the facts of this case. While an

imminent and substantial endangerment requires a reasonable prospect of a

near-term threat of serious potential harm, the court below made supportable

findings that suffice to bring this case within the compass of that standard. See,

e.g., Me. People's Alliance,211 F.Supp.2d at 245 (concluding that

methylmercury is a "highly toxic substance"); id.at 251 (concluding that, in an

aquatic system, "methylation is a continuous process that can go on for

decades"). Based on these and other well-founded findings, the plaintiffsestablished that the potential risk from mercury is serious and likely to be

present here and now. In turn, these findings support a conclusion that, as the

district court held, there may be an imminent and substantial endangerment to


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the lower Penobscot River. No more is exigible.

IV. THE REMEDY

84 Our environmental odyssey is not yet finished. Mallinckrodt contends that the

district court committed an abuse of discretion in ordering it to fund a study of

the lower Penobscot.

85 This contention is rooted in the notion that a court must balance the relevant

harms before granting injunctive relief under an environmental statute even

if the statute specifically authorizes that type of relief. See United States v.

Bethlehem Steel Corp.,38 F.3d 862, 867 (7th Cir.1994). Mallinckrodt would

have us achieve this balance by applying the familiar four-part framework for

determining the appropriateness of injunctive relief. Under that framework, theinjunction-seeker "must demonstrate: (1) that it has suffered an irreparable

injury; (2) that remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering the balance of

hardships between the [parties], a remedy in equity is warranted; and (4) that

the public interest would not be disserved by a permanent injunction." eBay Inc.

v. MercExchange, L.L.C.,___ U.S. ___, ___, 126 S.Ct. 1837, 1839, 164

L.Ed.2d 641 (2006).

86 Conceptually, we agree with Mallinckrodt that a trial court, in an environmental

case, should consider the balance of relevant harms before granting injunctive

relief, even though the statute itself authorizes such relief. The familiar four-

part framework for injunctive relief is a suitable guide in such situations. We

caution, however, that the operation of that framework is inevitably colored by

the nature of the case and the purposes of the underlying environmental statute

(here, RCRA).

87 Against this backdrop, Mallinckrodt insists that the district court mishandled

the third of the four enumerated elements by failing adequately to account for

the onerous hardships that the study would impose and contrast those hardships

with the meager benefits that the study might generate. In a nutshell,

Mallinckrodt's position is that the study will saddle it with a staggering

economic burden a burden so open-ended that the overall cost cannot be

predicted with any assurance yet will yield supposed benefits to the

plaintiffs' members that are at best speculative and at worst ephemeral. In thisregard, Mallinckrodt stresses that it is an open question whether the lower

Penobscot is actually in need of any remediation.15


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88 One difficulty with Mallinckrodt's position is that it treats this injunction like a

garden-variety injunction and, in the bargain, undervalues the extent of the

equitable discretion possessed by a district court after a finding of liability

under RCRA 7002(a)(1)(B). While Mallinckrodt's hardships are relevant to

the acceptability of a RCRA remedy, the argument that hardship must always

be outweighed by deliverable benefits offends the logic ofPrice.Even on

Mallinckrodt's restrictive reading of that decision,Priceholds that "Congress

sought to invoke the broad and flexible equity powers of the federal courts in

instances where hazardous wastes threaten [] human health." 688 F.2d at 211.

89 Ironically, Mallinckrodt dresses this argument in the raiment of a defense of

judicial prerogatives. It cites Weinberger v. Romero-Barcelo,456 U.S. 305,

313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for the proposition that judges

should not lightly assume that Congress has stripped courts of their equitable

discretion. But that is a red herring: while it is true that a district court is not

commanded, regardless of the circumstances, to issue an injunction after a

finding of liability, the court below was under no misapprehension on this

score. In reality, Mallinckrodt wishes to restrict, not preserve, the equitable

discretion of the district courts, and the case law that it cites is therefore beside

the point.

90 In reviewing a district courts exercise of its equitable discretion under suchcircumstances, we think it fully appropriate to acknowledge the statutory

scheme under which liability was found. Given the strong statement inPrice,

embraced by the Senate Report, advocating the exercise of equitable

remediation of environmental hazards, we perceive a congressional thumb on

the scale in favor of remediation. With this backdrop in place, we are unwilling

to say that the district court abused its discretion either by starting with the

proposition that its primary concern ought to be how best to remedy a

potentially serious near-term environmental hazard or by granting relief

notwithstanding the absence of a showing that the remedy's demonstrable

benefits exceeded its probable costs.

91 This is not to say that the costs associated with injunctive relief are immaterial;

we can imagine circumstances in which the expense entailed in carrying out a

particular remedial plan might dwarf the potential benefits to the environment

or to human health. Here, however, the anodyne chosen by the district court

does not seem so vastly disproportionate to the threatened harm as to warrant,from the vantage point of a cold appellate record, a recalibration of the balance.

92 This conclusion is reinforced by the fact that Mallinckrodt has not identified


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Notes:

Of the District of Rhode Island, sitting by designation

We use the phrase "near-term threat" advisedly. It is thethreatthat must be

any less burdensome, more cost-effective remedy that the court could have

imposed to address the perceived environmental harm.16Where, as here, a

polluter has failed to articulate a "nice adjustment and reconciliation between

the public interest and private needs,"Hecht Co. v. Bowles,321 U.S. 321, 329,

64 S.Ct. 587, 88 L.Ed. 754 (1944), a burdensomeness argument rarely will gain

much traction.

93 Taking a slightly different tack, Mallinckrodt characterizes the study-plan order

as unfair. It should not be forced to pay the entire cost of the study, it

complains, because it is not the only entity to have contributed to the pollution

of the lower Penobscot. That plaint rings hollow. While Mallinckrodt was not

the sole source of mercury contamination, it was a dominant one, so in that

sense its claim of inequitable treatment comprises more cry than wool.

94 At any rate, RCRA liability, generally speaking, is joint and several. See Cox,256 F.3d at 301 n. 37. The joint and several nature of environmental liability

makes it fitting to hold a single polluter responsible for the totality of the

damage where, as here, the harm is indivisible. See id.

95 We have said enough on this score. Once liability has been found, equitable

relief in RCRA citizen suits is largely in the informed discretion of the trial

court. For aught that appears, the court below did not abuse this discretion in its

choice of a condign remedy.

V. CONCLUSION

96 We need go no further. Despite an impressive array of arguments, skillfully

presented by extraordinarily able counsel, Mallinckrodt has not persuaded us

that the plaintiffs lack standing to sue, that its cramped interpretation of RCRA

7002(a)(1)(B) is what Congress had in mind, or that the district court actedoutside the realm of its discretion in fashioning a remedy for the threatened

harm. Consequently, we uphold the district court's rulings in all respects.

97 Affirmed.

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close at hand, even if the perceived harmis not. For example, if there is a

reasonable prospect that a carcinogen released into the environment today may

cause cancer twenty years hence, the threat is near-term even though the

perceived harm will only occur in the distant future.

Hanlin Group declared bankruptcy in 1991 and was never named as a

defendant in this action. HoltraChem dissolved in 2001 and, although originallya party, did not participate in the critical district court proceedings

HoltraChem was involved with Mallinckrodt in much of the pretrial activity.

For ease of exposition, however, we henceforth will refer to the Plant owners

collectively as "Mallinckrodt." This rhetorical device has no bearing on the

outcome of this appeal

We need not recount the trial testimony in endless detail. The critical facts are

laid out in the district court's rescript. Even though many of the facts areundisputed, the parties have woven them into widely dissimilar tapestries. On

the plaintiffs' telling, Mallinckrodt is an unrepentant polluter, which

consistently flouted governmental enforcement efforts and finally wore down

the regulators. On Mallinckrodt's telling, the plaintiffs are overzealous

environmentalists attempting an end run around the reasoned policymaking of

an Executive Branch agency. These pejorative portrayals do little to aid the

resolution of the issues before us

Mallinckrodt also makes a weak argument that the claimed injury cannot be

redressed by the relief requested. This argument focuses on the uncertainty

attendant to the study's outcome (for example, the study may find that there is

no endangerment or, if endangerment exists, that it cannot be rectified). But

even in the absence of a demonstrated need for remediation, the information

that the study will provide is adequate redress because it will allow the

plaintiffs to tailor their behavior to the actual condition of the lower Penobscot.

Consequently, Mallinckrodt's redressability argument is untenable

Mallinckrodt's other citations-National Lime Ass'n v. EPA,627 F.2d 416, 433 n.

48 (D.C.Cir.1980), andIndustrial Union Department v. American Petroleum

Institute,448 U.S. 607, 662-63, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980)

(Burger, C.J., concurring)-likewise concern judicial review of agency

regulations. They too are inapposite.

Mallinckrodt has pitched this aspect of its appeal exclusively in terms of

statutory construction. Had it challenged the district court's application of the

law to the facts, our review would have been more deferentialSee, e.g.,

Interfaith Cmty. Org. v. Honeywell Int'l, Inc.,399 F.3d 248, 254 (3d Cir.2005)

(advocating "clear error" review).

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The possible exception is the Second Circuit, which, to date, has not committed

to read into the statute a requirement of seriousnessSee Dague,935 F.2d at

1355-56.

Mallinckrodt is correct in noting that the district court, which cited bothEthyl

Corp.andReserve Mining, see Me. People's Alliance,211 F.Supp.2d at 246,

failed to acknowledge that those cases were defining the term "endangerment"in contrast with "imminent and substantial endangerment." This observation

may weaken the persuasive power of the district court's reasoning, but it hardly

answers the definitional question.

Mallinckrodt has opted not to revisit the district court's rejection of these

challenges in this appeal

This is not meant to suggest that a private party can interfere with an EPA

prosecution or disturb the finality of a negotiated settlement. The opposite istrueSee Supporters to Oppose Pollution, Inc. v. Heritage Group,973 F.2d

1320, 1323-25 (7th Cir.1992).

Indeed, even on Mallinckrodt's crabbed interpretation of section 7002(a)(1)(B),

courts would have to engage in exactly the type of evidence-weighing that

Mallinckrodt says is beyond their competence

Mallinckrodt's major criticism of the courts that have relied uponPricewhenconstruing section 7002(a)(1)(B) is that liability was not contested inPriceand

that, therefore, the quoted language must have referred to remedialauthority.

This criticism is undercut by the fact that the Senate Report quotesPricewhen

discussing the liability standard.

To the extent that Congress, within this new regime, intended to allow EPA to

defend its own policymaking prerogatives, it appears to have placed the onus

on EPA, rather than the courts, to stand as the sentry at the gatesSeeS.Rep. No.

98-284,supra,at 56 (explaining that "if the Administrator believes a citizen

suit . . . is not being prosecuted in the public interest, he may exercise the right

to intervene . . . and seek from the court restrictions or conditions upon the

citizen suit").

Mallinckrodt suggests that because Dr. Livingston acknowledged a dearth of

information concerning the current condition of the lower Penobscot, the

district court did not have sufficient facts before it to make an informed

weighing. It also suggests that the court neglected to accord due respect toEPA's tentative view that the proposed media protection standards would

adequately ensure the river's safety. Whatever force these suggestions may

have-and we do not imply that they have any-they go mainly to liability, not

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remedy

Mallinckrodt does mention, albeit in passing, that the district court committed

an abuse of discretion in not "requiring an estimate of [the study's] overall

costs." Appellant's Br. at 62. Although it certainly would be preferable for a

court to establish with some exactitude the extent of the financial burden

imposed by a particular remedy, that degree of precision is sometimesinfeasible or impractical. The court below was cognizant of this shortcoming

and took pains to note in the order approving the study plan, entered on August

10, 2005, that "if necessary and at the appropriate time, the Court will require

the preparation by the Study Panel of a budget formulation for any remedial

plan or effort which may result from the first phase" of the study. Given the

complex nature of the situation and the existence of this safety valve, we find

the absence of more definitive cost parameters tolerable

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maine peoples v. holtrachem, 471 f.3d 277, 1st cir. (2006)

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